Feb 09, 2006

All Your Heals Are Belong To Us

The Canadian Red Cross wants game developers to stop using the Red Cross logo in games, claiming trademark infringement, trademark dilution, and playing the "support the troops" card by suggesting that use of a red cross in games removes the “protective value” of the mark in real war zones. No, I'm not making this up. I wish I were. The Vancouver Sun quotes David Pratt, the international issues director of the Canadian Red Cross:

"The fact that the Red Cross is ... used in videos which contain strong language and violence is also of concern to us in that they directly conflict with the basic humanitarian principles espoused by the Red Cross movement,''

Pratt said in a Jan. 31 letter to a Vancouver law firm that represents several Canadian game developers.

"The crux of the problem is that the misuse of the Red Cross in video games is not only in contravention of the law, it also encourages others to believe that the emblem of the Red Cross is `public property' and can be freely used by any organization or indeed for commercial purposes."

Now, let me stipulate for the record that the Red Cross/Crescent is just a peachy institution. Really, it ranks right up there with apple pie and my mum. But just as my mum has been wrong on occasion, the Red Cross is acting like a jackass here.

This is a bad, bad claim that the Red Cross is making here. It is wrongheaded, and stupid. Part of the problem is the demonization of games and the whole "Jack Thompson and Hilary Clinton and Every Other Politician vs The Games Industry" Punch-and-Judy show. In trademark law this issue gets played out as "tarnishment" and the implication here is that the Red Cross's mark is somehow tarnished by association with a violent videogames. Please. I could maybe buy this if you built a videogame that had Red Cross workers as spawn of Satan, going round killing innocent babies under color of helping them. But the mere use of a Red Cross symbol within the game? C'mon.

Beyond this there is a more pernicious problem that demonstrates a lot of what is wrong in intellectual property policy. The Red Cross seems to think that the symbol is its property (it isn't exactly, but leave that be for the moment) and the concept of private property demands the ability to exclude others from using your stuff without your permission. But the problem with strong claims of property here is this means that we have to remove this symbol from the common pool of expression. That is, if we recognize a property claim in this red cross, then the only way that I can, for example, have red crosses float over my character when I heal myself is by striking some deal with the property owner. The owner (ie the Red Cross) can stop me from using it otherwise. But how else, exactly, am I supposed to communicate graphically the concept of healing? What about the representation of a hospital within a MMOG? Sure, I could put "The Edward Castronova Memorial Hospital and Treatment Center for MMOG Addiction" on a generic building; but how much more expressive is this same building with a great big red cross on it? As my character races past this building, on his way to committing a foul murder or a random carjacking, I know that this is a representation of a hospital that may come in handy when the cops shoot me and I'm in need of some bandages.

This problem is an example of the way that the expansion of intellectual property claims restricts the ability of people to express themselves. If I wasn't goofing around with loopy blog posts like this one, I would be finished the book I'm allegedly working on that is exactly on this topic, and I could upload it for you to see more examples. I'll do that when I get a readable draft (in about ten years at the current rate).

In the meantime, someone contact the Red Cross and tell them that this is a daft idea. I tell you what, you can even infringe my intellectual property and copy this whole blog post in your letter to them.

» Red Cross Trademark Far Too Diluted to Defend from Banapana
Over on Terra Nova, I found this note from Dave Hunter about the Canadian Red Cross getting uppity about videogame designers using a red cross as an icon for health. Apparently they don't want to be associated with all of these shoot 'em up games the k... [Read More]

Comments

The Red Cross may have a trademark, but do they really want it challenged? Is it really in their best interests to make this an issue that they could possibly lose? I donate annually to the Red Cross, and I'd rather my donations go to help victims of war, rather than victims of litigation.

I also think that the claim that in-game use "dilutes" the trademark is dubious. It might even be argued that its use in games makes the symbol more recognizable as a symbol of healing throughout the world.

Has anyone from the Red Cross actually played the quest in WoW to get your First Aid up over 225? You run around a hospital room healing injured soldiers. Yes, little red crosses float out when I use a bandage on a soldier, but is that really damaging to the image of the Red Cross? I'm healing wounded soldiers for Pete's sake!

I can't think of a single instance in any game where the red cross symbol is used to mean anything other than help and healing. Does anyone have any solid examples of misuse of the symbol?

Expressing no opinion about Canada -- there is a little known US federal criminal statute that is precisely on point:

TITLE 18--CRIMES AND CRIMINAL PROCEDURE

PART I--CRIMES

CHAPTER 33--EMBLEMS, INSIGNIA, AND NAMES

Sec. 706. Red Cross

. . .

Whoever, whether a corporation, association or person, other than the American National Red Cross and its duly authorized employees and agents and the sanitary and hospital authorities of the armed forces of the United States, uses the emblem of the Greek red cross on a white ground, or any sign or insignia made or colored in imitation thereof or the words ``Red Cross'' or ``Geneva Cross'' or any combination of these
words --

Shall be fined under this title or imprisoned not more than six months, or both.

***

So, at least with respect to the USA, blame your elected representatives (most or all of which are dead, the statute was signed into law in 1948).

I agree with Dan's reaction against the TM=private property confusion, and I think, as a legal-doctrinal matter, Andy might have pegged the weirdness of this one under US law:

In another forum on this, an esteemed colleague of mine said that one should look at Federal Trade Comm'n v. A. P. W. Paper Co., 328 U.S. 193 (1946) where "The Court overturned an FTC order barring the respondent from selling toilet paper and paper towels in rolls bearing a red cross, a registered trademark. The Court found that the 1905 act incorporating the American Red Cross (as amended in 1910) recognize the rights of senior (to 1905) users of the mark to continue doing so."

And I replied:

"Given that it's a criminal statute, you'd think it might be narrowly interpreted and limited to cases involving fraudulent activities. But who knows? Another Supreme Court case, San Francisco Arts & Ath. v. United States Olympic Comm., 483 U.S. 522 (1987), might be relevant, I suppose. (5-4 decision, authored by Powell, enjoining the Gay Olympics, rejecting the notion that exclusive rights to the word were limited to trademark-type protections, and holding that the ban on use didn't violate the First Amendment.) "

I think it boils down to what "use" means in that statute.

And regarding the trademark claims, all I guess I can say is that it would be interesting to know exactly what the Canadian Red Cross thinks constitutes a violation of their trademark rights when a red cross is displayed within a video game. Pursuant to trademark law, one needs a little more than that, to say the least -- a trademark is not a copyright.

And, finally, lest I be misunderstood -- like Dan said, the Red Cross is a great organization. Despite any possible overreaching on IP rights, to the extent they've got a legitimate concern about how this affects their operations, I think you've got to take that type of complaint seriously and see if you can address it.

I thought there were two uses of the red cross, one as a symbol of sanctuary during conflict, and the other effectively a trademark. The question is whether games with virtual conflict can legally use the sanctuary version of the mark? Who decides? Can the IRC (or U.S. prosecutor as shown by Andrew) decide a gang war is not a deserving conflict and throw people in jail for using the red cross?

Up through the 1950s, Johnson & Johnson used a Red Cross on their Band-Aid brand packaging. To this day boxes of medical supplies sold to and placed within businesses, government offices, schools, etc., sometimes have a red cross. The symbol itself came into use back in the 1860s when the International Red Cross was founded.

I believe that any court case involving minor use of the symbol WITHIN a product (as opposed to denoting the entire product) will require the owner to prove that (a) their trademark is unique, and (b) they have defended their ownership since its inception. To my knowledge, no Red Cross organization has done that. Therefore, any attempt to "turn back the clock" and "take it back" now from its common use as a widely understood symbol is truly doomed.

People and organizations do silly things all the time. This quixotic crusade by the Canadian Red Cross to take back their cross from common use simply mae me laugh.

Red Cross is a great wonderful organization? Be careful with assumptions like that. The CEO of Red Cross makes upwards of $700,000 a year. Start adding in a bunch of the other top staffers and you suddenly start to wonder how much your potential contributions are going to pad a bunch of people's bank accounts.

Compare that to Salvation Army, 2 billion dollar organization, with a CEO that makes something like $15,000 a year.

Or even still to Child's Play which has CEOs that make nothing. (Go Gabe and Tycho!)

Regarding the entire post (and not reading the comments), something feels fishy about your it. I don't disagree with you, but I can't quite put my finger on what it is that seems to be wrong with the post proper.

Compare that to Salvation Army, 2 billion dollar organization, with a CEO that makes something like $15,000 a year.

Actually the Salvation Army is often criticized as not being very transparent about their business practices. Filing as a religious organization, they do not disclose their financial information to the IRS (and have refused to give it to all organizations I know of which evaluate charity efficiency). My fiance researches things and also worked for a summer at the Salvation Army and was very critical of their practices and effectiveness.

Dan, I don't think the Red Cross is focussed on this as a property issue, but more as an issue of use of their symbol. I think there are probably some good policy reasons for keeping the symbol of the Red Cross uncontaminated, and future fighter pilots who were raised on games in which they get points for bombing Red Cross buildings is arguably problematic from that policy perspective. Even more so if the neutral meanings of the symbol became diluted. That being said, such problems would not apply to all uses of the Red Cross in a video game, and I'm not sure the legal sanctions in Canada are as clear-cut as Mr.Pratt might hope.

The full letter was posted on the Video Game Law blog a week or so ago, for those interested. Mr Pratt does not say which video games he has in mind, but he just talks of the "video game industry" as a whole. For his interpretation of the restrictive allowances on the use of the Red Cross, he appears to be relying in part on a 1909 statute enshrining the importance of the ICRC and obligations under the Geneva Conventions. The statute reads in part:

(2) No person or corporation shall wear, use or display for the purposes of his or its trade or business or for the purpose of inducing the belief that he or it is a member of, or agent for The Canadian Red Cross Society, or for any other purposes whatsoever without the written consent and authority of The Canadian Red Cross Society, the heraldic emblem of the Red Cross on a white ground, or the words "Red Cross" or the Geneva Cross or any other word, mark, device or thing likely to be mistaken for them or either of them.

And then goes on to outline sanctions including jail for contravening it. The fact that the statute was drafted before the 1982 Charter is rather evident in the broad wording, in particular the catchall "or for any other purposes whatsoever", which would seem to be the focus of Mr. Pratt's argument. Mr.Pratt would have to convince a prosecutor to pursue the case - which would involve explaining in greater detail what the problem is. Any prosecution would most likely face a s.2(b) challenge (the Canadian guarantee of free speech - essentially similar to the First Amendment in the US, although the analytical approach is somewhat different). The use is almost undoubtedly covered by 2(b), and thus the government would need to demonstrate why limiting the right to speech (in this case the use of the Red Cross symbol) is justified in a free and democratic society, and why the statute is not overbroad (on its face, it would seem to be - although one would need to examine the exact reasons for protecting the Red Cross symbol). However, depending on the purpose attributed to the statute, the court could choose to "read down" the wording, such that it was no longer overbroad - whether that "reading down" would include video game uses or not would depend on the purposes for protecting the symbol and the uses made of it in the particular video game.

As Greg pointed out, Mr. Pratt's second argument (based on the Trademark Act), is a little more difficult to make out, since the games are not making "use" of the symbol as a trademark. I suppose an argument might be built on some form of dilution, but the simple depiction of Red Cross buildings/units in a game doesn't constitute any greater dilution than their depiction in a movie, painting, etc. Moreover, if the symbols are being accurately used (eg. according to their purpose in the Geneva Conventions), what detrimental effect would it have? Are all depictions of Red Cross units to be banned in commercial media? or are video games somehow relevantly different as a medium? Perhaps the world would be a better place if all those MASH reruns were edited to remove the Red Crosses - I wouldn't want to be the person to have to do it.

It sounds like the primary concern, however, is that the Red Cross symbol is *not* being used accurately in the games in question. It would perhaps be helpful to know which games Mr. Pratt has in mind to better understand the concerns.

While the issue of the rights to the red cross could still be debated, would it be that hard to change crosses to other colors in games? I know I've seen blue plus signs to denote healing in some games...

My friend was over the other day, and I showed him http://www.exploitsrus.com/wow.html It is a site with cheats, bugs, dupes, etc for world of warcraft. He told me it was against the rules for wow to do this. Is this true? I am used to cheating on video games for my whole life, so I was sort of shocked to hear this.

StGabe, I don't mean to say Salvation Army is perfect either. Just pointing out to everyone, I guess, that most charities end up having large internal costs that eat up a large percentage of their revenue. Be careful how much anybody treats these organizations like saints. To quote Death to Smoochy, "Of all the charities, they're the worst" or something similar ;)

But how else, exactly, am I supposed to communicate graphically the concept of healing?

Actually, I sorta read their concern to be specifically about a white flag with a red cross in the middle upon obviously-referential NPCs, vehicles, and objects. I would think in those contexts they could raise a relevant stink.

But in terms of using a cross to denote healing? Yea, I don't think they've got much leg to stand on there, if that's what they mean. The symbology they borrowed predates their organization by so much the cross itself is gotta be public domain by now.

However, I do completely agree this raises a problem. It's an issue in the Rights Clearances field too. If you want to use a piece of photo or video that happens to have a red cross van in the distant background, you could be asked by the Red Cross to pay up or remove it. This includes even such things as stock photos. It's a fulltime job just managing that stuff on large-quantity asset projects.

The Red Cross, despite its historical contributions in times of woe, has probably crossed the line and just like many churches, is more interested in organizational self-perpetuation for its own sake and has consequently taken a protectionist line. Like any large company, its no doubt invested millions in the marketing of its brand name and wants to keep anyone else from benefitting from that investment. Personally, if I lived in a war-zone and operated an ambulance, I'd paint a big red cross on the side irrespective of whether I licensed its use from Red Cross proper.

Did the Red Cross manage to get any money out of the somewhat extensive use of their trademark in the TV show M*A*S*H?

If so, which Red Cross? M*A*S*H was shown across the world, including here in the UK. Did each legal territory have to get the Red Cross's permission to broadcast the show? Or didn't they bother to ask?

I suspect the latter, actually. As far as I know, countries tend to have laws that permit on the stage activities which are illegal off the stage. For example, in the UK you can be arrested for impersonating a police officer. Doing so as part of a theatrical production is legal, though, and I seem to recall this being extended to cover "productions" such as strippergrams, where people pretend to be police officers investigating the noise at a party then undress and sing "happy birthday" to the tricked host.

Anyway, this escape clause would seem to apply to TV shows, in which people impersonate police officers all the time. So long as it's in context and everyone knows it's part of the production, why not? Could McDonalds sue over the extensive reproduction of their logo in "Supersize Me"? Of course not.

There seems no reason why the same rule shouldn't apply to computer games. If it were misrepresented in such a way as to bring the original into disrepute then that would perhaps be cause for alarm, but putting a red cross on a medpack isn't doing that (if anything, it's reinforcing the brand).

No-one is making out that virtual worlds are real. Everyone knows they're pretend. What's the problem?

Incidentally, a red cross on a while field is the flag of England, where it's known as the Saint George's Cross. It's been that way since the 13th century, when it was worn during the crusades. It's different from the Red Cross in that it bleeds to the edge of the flag, whereas the Red Cross doesn't. However, in some of the games which show the Red Cross, it also bleeds to the edge on a square or round field. Sometimes, it isn't on a white background, and sometimes it isn't even red.

This is just an attempt by the Red Cross to bring attention to its serious work, which is is a laudible end using dislaudile means.

^^^ exploitsrus. I know this is off-topic, but I think it's funny that I've seen that exact same comment on a handful of message boards now. You'd think someone trying to poison the well with advertisements for pay-sites would be less obvious.

When I first read of this, I was angry that the Red Cross would waste its time on such a matter.

I then looked into the issue a bit more and changed my mind. This isn't a question of a charity trying to protect its Brand so it can recoup its Marketting investment. It is a question of trying to maintain an international symbol of neutral succour so people wearing the Red Cross on a battlefield don't get shot.

If it was merely to protect a business model, this rhetoric would apply. Since the goal seems to be to protect peoples lives, I think the right thing for developers to do is to conform voluntarily.

I think that the portrayal of the red cross as a healing item on first aid kits 'could' go to help their cause and raise awareness of their work...

But that said, I completely understand the Red Cross and agree with them. It's their trademarked symbol and Games shouldn't try to co-opt it. So far as I can recall games have never shown Red Cross workers or even shown the red cross in a way that represents anything other than 'health'. We wouldn't expect to be able to use the McDonald's arches as a symbol for food, would we?

Maybe instead we should be thinking of good alternaties, even if it means actually creating an icon for popular culture that signifies health. (Or we could just use the red blood drop.)

What is the big deal here? As a developer, I should be put out of business if I'm so unbelievably uncreative that I cannot -easily- find a substitute for the red cross symbol. Is the industry so stuck in group think that something as simple as not using the red cross becomes an actual barrier to development?

If we need an alternate health symbol, how about a cross in the style of the Hospitaller Knights of St. John from Jerusalem during the Crusades. It's iconic enough to work, and shouldn't have trademark issues 1000 years after it's origin.

Claiming ownership of the Red Cross logo is like claiming Bethoven's Ninth symphony. They have absolutely no rights to it unless they can prove that it is their particular rendition, which would seem entirely impossible.

RedWolf>Claiming ownership of the Red Cross logo is like claiming Bethoven's Ninth symphony. They have absolutely no rights to it unless they can prove that it is their particular rendition, which would seem entirely impossible.

Actually, in the case of music it is possible. Music publishers make minor variations to out-of-copyright material when they publish it, so that anyone who simply takes their score and republishes it can be done for copyright infringement. "Beethoven didn't put in a three-note chord there, he only put in two notes, so you've ripped us off". It's the same principle used by cartographers, who add extra kinks in rivers and invent tiny islands just so people who reprint their maps can be made to stop.

I can see the Red Cross's point. Their symbol is clearly being used to represent healing in games preceisely BECAUSE it's become synonymous with the activity, a condition that exists solely due to the efforts of the RC itself (much to their credit).

Your logo is your identity. When you let others use it, even those with arguably good intentions, you risk the integrity of that identity. This can be particularly troubling for an organization that relies upon goodwill and trust to bring in donations.

I think the game industry is in the wrong on this one. An understandable and unintentional slight, I'm sure...but one they should be decent enough to correct now that it's been brought to their attention. There are other ways to make healers stand out in games without resorting to cliches.

Considering that the cross is a Greek cross, I'll just go ahead and claim it back on behalf of its rightful owners, my people, and the U.S. federal government, and the Canadian Red Cross may both get down on their knees and suck my %$&@ if they want to pay for the rights to use it.

On another note, I donated money to the American Red Cross after 9/11 (and I worked at the top of the south tower), and they used that money to, let's see, finance more fundraising and pay for utility bills for all the well-heeled downtown residents who were "inconvenienced" by the attacks. And the families of the immigrant dishwashers and other minimum wagers who perished that day? They could go $&%@ themselves, for all the Red Cross cared.

Don't give to the Red Cross. Give to an organization with a code of ethics and a pair of testicles to match. Give to Doctors With Borders.

They have an online misuse reporting form on their website. I'm going to report them to themselves, for stealing my religious and national symbol, and for wasting my donations on frivolous litigation, and for being a bunch of $%#&suckers.

I will just be frank: a cross is a generic symbol of health, healing, and recovery. It is in symbolic encyclopedias. Red Cross needs to just give it up because if they want to help people, they should do that and not care about a widely accepted symbol in a game that even the Red Cross borrows from society.

The red cross is NOT a generic symbol of health, healing and recovery. It's simply become so widely associated with those things due to the efforts of the Red Cross that most of us take for granted that it's in the public domain. It's an understandable mistake, but a mistake nonetheless.

I don't know, I'm no lawyer, but something doesn't smell right about this Red Cross claim. I think they appropriated their symbol from others in the first place. They didn't do enough to make it unique, and now they want to claim ownership of an image that is a composite of various preceding visual icons, and not even used exclusively by them.

This seems like a general problem in our corporate-dominated world. Corporations have a greedy tendency to pull things out of the common domain, put just enough of an individual stamp on them to satisfy a friendly government agency or court, then assert exclusive ownership of them. I know that the corporations have enormous power to dominate legislatures and courts, so they often get what they want. But that doesn't make it right. It's just another variety of the same kind of theft they complain about when they say someone violates their trademark. But the corporations are smart enough to steal from people who aren't organized enough to have good lawyers.

I heard that the MASH series did actually get permission to use the Red Cross for their show. And I can understand where they are coming from since most freedoms are tied with understandings of responsibility of usage. In other words I don't think freedom of speech is this omnipotent power that lets me say anything to anyone, and not get punished. But like others have said this is slightly frivolous suit, and both sides making seem more silly by the minute. Not using the Red Cross in games isn't that much of a limitation, and if you really want to use it then work out a deal so that you can use it. As remarked above the Red Cross symbolism used in the games are more of realism then for identity or brand-relations (or at least I believe so). So really perhaps a better way to solve this is for some of developers to say "fine we will remove them" and the Red Cross to make some sort of guideline that allows the symbol to be used in fair use.

If I had the choice I'd rather not use the Red Cross or Red Crescent for healing or med packs in game...just another case of real life religious symbols creaping into the gaming sphere;)

Seriously though, a red cross on a white background at least in my mind is a symbol for medical help, more so than a representation of the Red Cross organisation. This impression has been built up through exposure to the media/literature/popular culture (inc. games) over my life, I wonder how many other people would be the same? If a large number of people already primarily associate this red cross symbol with a meaning distinct (if derivative) from the Red Cross organisation then has not the battle already been lost?

I see a red cross on a white background and I think health/medicine/first aid, I don't think "International Red Cross Organisation, based in Geneva". It is a reasonable alternative meaning to a symbol widely visible in Western societies. If we are cracking down on alternate meanings diluting symbols then should the Christians be worried that the Red Cross Organisation is diluting the import of their Saviour's sacrifice? Sure the Red Cross Organisation has reputable goals, perhaps derived from Christian values, but they are now a distint organisation..

I suspect that most of the people who are upset are upset because they feel that:
- their freedom of speech (such as it is) is being curtailed, and
- this sets an unpleasant sort of precedent which could open the door for a whole bunch of lawsuits from all and sundry.

In regard to the first point: I believe that people should have the freedom to use the symbol - in other words, the Red Cross hasn't done enough to protect their trademark and hence should not have the right to hang on to it - but at the same time I think developers ought to exercise self-restraint. Take C&C: Generals as an example: players are allowed to deploy combat ambulances bearing the Red Cross mark to sit next to their front-line troops and heal them. This could have an adverse effect on the perception of Red Cross-bearing ambulances as neutral and protected vehicles. OTOH, corporate identity has nothing to do with it, and frankly if the Red Cross wants to claim it as a "trademark", they can piss off.
In regard to the second point: at the very least, the judge needs to be convinced that the Red Cross only merits special treatment because respect for that symbol, or the lack thereof, could mean the difference between life and death for their people in the field. If it seems as though that distinction is not going to be made, then I'm all for fighting them tooth and nail.

In regard to self-restraint: it isn't difficult to imagine tons of alternatives. I believe several games (forget which ones exactly) are already using a red circle with a white cross as a healing symbol. Others use green crosses. A caduceus might work, but that's a bit harder to identify from a distance.

Juan, I wouldn't say the battle's been lost. In fact, I'd say it's probably more important than ever for the Red Cross to curtail unapproved use of their symbol. The more people think it's in the public domain and treat it as such, the more important it is to remind them it isn't. Believing something should be public property doens't make it so.

The gaming world is not without its own conventions for representing healing. Most health bars go from green when full to red when dangerously low. City of Heroes just uses the color green for healing. Green numbers above your head represent the amount of hit points being added to your health bar.

There's no need for anyone in the gaming industry, whether a developer or player, to get up in arms over what really is a tradition of misappropriation of the red cross. It didn't occur to me either until this lawsuit came up, but what's the big deal? They're easy changes to make that are highly unlikely to impact the players' understanding of the game in even the slightest way.

"This isn't a question of a charity trying to protect its Brand so it can recoup its Marketting investment. It is a question of trying to maintain an international symbol of neutral succour so people wearing the Red Cross on a battlefield don't get shot."

This is exactly the issue, not some corporate money grab or any other trademark type issue. This is peoples lives on the line. And the image of the red cross definately does take a beating in video games. Unless i'm mistaken, no one on a battlfield wearing a red cross is carrying a gun. Take a look at BF1942 / BF2 and see if the medics there are carrying guns and then ask yourself if the Red Cross may have a point.